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The Title and Boudaries of New Brunswick Highways

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The Title and Boudaries of New Brunswick Highways THE TITLE AND BOUDARIES OF NEW BRUNSWICK HIGHWAYS BLAIR DRAKE September 1977 TECHNICAL REPORT NO. 47 PREFACE In order to make our extensive series of technical reports more readily available, we have scanned the old master copies and produced electronic versions in Portable Document Format. The quality of the images varies depending on the quality of the originals. The images have not been converted to searchable text. TI-lE TITLE AND IDUNDARIES OF NEW B~NSHICK HIGMAYS BY BlAIR D~ September 1977 Reprinted January 1985 11 0NCE A HIGHWAY - ALWAYS A HIGHWAY 11 Legal Maxim. ThM, tec.hnic.al Jc.epo.lr-t .i.6 an abJU.dged veJL6.£on ofi an M. Eng. Jc.epo.lr-t e.n;t,i;t.ted "A .6tudy o6 CelttcU.n Mpec.U ofi the Po.Uc.y and Law Pelttcvi.ning to H.£ghway.6 a.6 they A66ec.t the T..i:t.e.e and Bo undaJU.u o 6 New BIC.Un.6w-i.c.k. H.£g hway-6 " • The complete Jc.epo.lr-t may be 6ound .£n the UniveJL6Uy o 6 New BIC.Un.6W.£c.k. Eng.£neeJU.ng Ub~C.a~Ly. ABSTRACT This report is a study of certain aspects of the policy and Jaw pertaining to highways as it affects the title and boundaries of New Brunswick highways. A substantial review of the historical background of the nature of highways and their creation both in law and in substance is presented as essential to the understanding of the development of highways and the laws that governed them. It is the basic difference of the legal concept of a common or public highway in contrast to the statutory definition of a highway under the present Highway Act that provides the basis for this report. The discussions of the methods of establishing and creating each type of highway and the law pertaining to the proper opening and closing of these highways provide an understanding of their differences and how these differences have contributed to the present status of New Brunswick highways today. An analysis of several typical sections of existing highway, with regard to title and boundary, will indicate to a certain extent, the complexity of the problem of determining what actually are the I imits of a highway and what degree of title to the lands is actually held by Her Majesty the Queen in Right of the Province of New Brunswick as represented by the Minister of Transportation. The conclusions and recommendations resulting from this study could provide the terms of reference for a Committee to study this problem in much greater detail and make recommendations to the Provincial Cabinet regarding legislation to properly resolve the existing situation in both an equitable and economic manner. - i - ACKNOWLEDGEMENTS I wish to express my appreciation to the staff of the Legislative Library, the Provincial Archives and the library of the U. N. B. Faculty of Law for their invaluable assistance in locating numerous records and documents used in my research. Thanks are also due Mr. Peter MacNutt and Mr. J. T. Keith McCormick, solicitors with the Department of Justice, for their opinions and interpretations on various points of law discussed in the report, Mr. Frank Maddox of the Department of Transportation for his continuous support and interest, and Dr. John McLaughlin and Dr. Wolfgang Faig of the Department of Surveying Engineering who jointly supervised this report and provided special effort and encouragement when it was most needed. An appreciative note of thanks is due Mrs. Lois MacBeth, who supervised the final typing of this report, and my special thanks and appreciation to Ms. Linda Fox, who bore with me through many late nights of research, typing and preparation of the initial draft. - ii -- TABLE OF CONTENTS ABSTRACT ....................................................•.. ACKNOWLEDGEMENTS ........................................... ; ii TABLE OF CONTENTS . .. .. .. .. .. .. .. .. .. • .. iii LIST OF FIGURES . .. vii GLOSSARY OF LATIN TERMS . • . ix CHAPTERS 1. INTRODUCTION 1 1. 1 Purpose of the Study . 1 1. 2 Historical Background of New Brunswick Highways . 2 1. 2. 1 The Need for Setting the Scene .......... 3 1. 2. 2 Settlement of the Land ................... 4 1.2.3 Early Crown Grants and Crown Surveys ... 6 1.2.4 "Ten Percent for Roads and Waste" ...... 10 1. 2. 5 "Reserved Roads" ....................... 12 1. 2. 6 The Concept and Development of Early Highways ............................... 13 1. 2. 7 The Design and Construction of Early Highways ................................ 15 2. THE LEGAL NATURE OF A HIGHWAY . .. .. 24 2. 1 Definition of "Highway under the Highway Act, Chapter H-5, of the Revised Statutes of New Brunswick, 1973 . 24 2. 2 Definition of a 11 Common or Public Highway" . 26 - iii - CHAPTERS 3. THE CREATION OR ESTABLISHMENT. OF HIGHWAYS .......... 29 3.1 Reserved Roads made by Crown Surveyors . 29 3. 2 Highways Laid Out or Established Under the Authority of the Old Acts Relating to Highways ........ , . 36 3. 3 Roads Subject to Expenditure of Public Money to be Highways . 59 3. 4 Highways Established by Modern Statutes Other Than the Highway Act . • . .. 64 3. 4. 1 Highways Under the Community Planning Act ..........................•. · · · ·. · · · · · · 64 3.4.2 Highways Established Under the Expropriation Act ........................ 67 3.4.3 Highways Established Under the Municipalities Act .....................•.. 71 3. 5 Highways Established Under the Highway Act, Chapter H-5, of the R. S. N. B., 1973 . .. .. 74 3. 5. 1 Statutory Definition of a Highway Under the Highway Act ...................•.......... 74 3.5.2 Sections of the Highway Act, Pertaining to Establishment, Title and Jurisdiction of Highways ............................. 75 3.5.3 Various Types of Existing Highways ..... 81 3. 6 An Analysis of Various Sections of the Highway Act Pertaining to the Establishment of, Title to, or Jurisdiction over a Highway . 91 3. 6. 1 Section 12 of the Highway Act ........... 91 3.6.2 Section 14 of the Highway Act 92 3.6.3 Section 11~ of the Highway Act 94 3.6.4 Section 16 of the. Highway Act ........... 97 - iv - CHAPTERS ··Page 3.6.5 Section 23 of the Highway Act ............ 97 3.6.6 Section 29 of the Highway Act ............... 98 3. 6. 7 . Section 30 of the Highway Act .............. 99 3.6.8 Section 32 of the Highway Act ............ 104 3.6.9 Section 23 of the Highway Act .. ~ ......... 109 3.6. 10 Section 35 of the Highway Act ............ 112 3. 6. 11 Section 56 of the Highway Act ............ 112 3. 6. 12 Section 66 of the Highway Act ............ 113 3. 6.13 Section 68 of the Highway Act ............ 113 4. TITLE TO AND BOUNDARIES OF HIGHWAYS ................ 118 4. 1 The Ad Medium Filum Rule . • . 121 4. 2 Interpretation of "Abutting Landowner" . 132 4. 3 Non-Uniform Title and Boundary of Highways . • . 13!~ 4. 3.1 Boundaries of Highways as Determined by Returns of Commissioners of Highways ............................... 154 4.3.2 Boundaries Affected by Physical Condition of the Roadway .......................... 155 4.3.3 Title and Boundaries Affected by 11 Gifts11 Donated by Abutting Landowners ........ 156 4.3.4 Policies and Actions of the Department of Transportation which Adversely Affect the Title and Boundaries of Highways ....... 157 5. · ·coNCLUSIONS. AND RECOMMENDATIONS . 169 5. 1 Recommended Procedures for Department of Transportation . • . 173 - v -- CHAPTERS Page 5. 1. 1 Policy . • . • . 173 5. 1. 2 Survey Work . • . 174 5. 1. 3 Monumentation . 174 5. 1. 4 Descriptions . 175 5. 1. 5 Documents . 17 6 5. 1. 6 Plans . 176 5. 1. 7 Registration and Records . 177 5. 1. 8 Manual of Instructions and Procedures . 177 5. 1. 9 Staff . 178 5. 1. 10 Seminars . • . • . 179 5. 2 Related Areas Requiring Investigation and Reform . • . 179 LIST. OF FIGURES ·Page 1. ORIGINAL FIELD CENTRE LINE vs. AS BUILT CENTRE LINE • . • . 105 2. HIGHWAYS OR STREETS IN VILLAGES . • • . • 110 3. DISCONTINUANCE PROBLEM . • . • 116 4. AD MEDIUM FILUM RULE . • 122 5. TITLE TO LANDS UNDER HIGHWAY VESTED IN "THIRD PARTY" . • . • . • . 124 6. NEW HIGHWAY OVER UNGRANTED CROWN LAND . • . 126 7. TITLE TO LANDS UNDER HIGHWAY VESTED IN ABUTTING LANDOWNERS . • • • . • . 130 8. NON-UNIFORM OWNERSHIP OF A HIGHWAY . • . 133 9. SKETCH DEPICTING POLICY OF ONLY ACQUIRING TITLE TO LANDS OUTSIDE EXISTING HIGHWAY LIMITS . • . • 135 10. COMPLEX TITLE AND BOUNDARY PROBLEM . 136 11. NON-UNIFORM TITLE AND BOUNDARY . • . 137 12. SKETCH DEPICTING POLICY INVOLVING EXPROPRIATIONS • • . .. • 139 13. ANALYSIS OF TITLE TO LANDS UNDER HIGHWAYS . • • . • . • . 140 14. HIGHWAY BOUNDARIES INVOLVING A NON-NAVIGABLE RIVER . 142 15. ANALYSIS OF PROBLEMS CREATED THROUGH OCCUPATION WITHOUT PROPER TRANSFER OF ADMINISTERATION .. • • . • . • • 143 16. ANALYSIS OF TITLE TO HIGHWAY .. .. .. .. .. .. .. .. .. • • 144 17. SKETCH DEPICTING DISCONTINUANCE PROBLEMS .. • . • • • • • • • 146 - vii - 18. PROBLEM IN DESIGNATION OF HIGHWAYS . • . • 148 19. DESIGNATED HIGHWAY PROBLEM . .. .. .. .. .. .. 149 20. HIGHWAY ENCROACHMENT , . 151 21. DEVIATED HIGHWAY . 152 22. IRREGULAR BOUNDARY TO HIGHWAY DUE TO A NATURAL PHENOMENON . • . • 153 23. GIFT DONATED BY ABUTTING LANDOWNER . 158 - viii - GLOSSARY OF LATIN TERMS ad quod damnum the name of a writ formerly issuing from the English chancery, commanding the sheriff to make inquiry 11 to what damage 11 a specified act, if done, will tend, ..... e. g. if anyone will turn a common highway and lay out another way as beneficial. ad medium filum viae to the middle thread of the way. ad medium filum aquae to the m idd I e thread of the stream . animus dedicandi the intention of donating or dedicating. certiorari to be informed of, to be made certain in regards to. The name of a writ of review or inquiry. An appellate proceeding for re--examination of action of inferior tribunal or an auxiliary process to enable appellate court to obtain further information in pending cause. de {acto in fact; actually; indeed; in reality. ex parte on one side only; by or for one party; done for, in behalf of, or on the application of, one party only.
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